The First Circuit Court of Appeals will hear Boston Marathon Bombing defendant Dzhokhar Tsarnaev's argument that he can't get a fair trial in Boston. Don't hold your breath for any revelations though: the appellate court has forbidden lawyers for either side to talk about the details at the heart of the argument.

Tsarnaev_AppealThe First Circuit Court of Appeals on Feb. 19 will hear arguments on Boston Marathon Bombing defendant Dzhokhar Tsarnaev’s latest attempt to move his trial.

The hearing by a three-judge panel will be open to the public. Not that there will be much to listen to, though. 

Here’s how dissenting Judge Juan. R Toruella put it in the court’s order setting the hearing:

It will be quite an interesting hearing since the parties will be forbidden from discussing the details of facts directly at the heart of the issue presented: whether the answers given during the jury selection process have demonstrated that the jury pool is so tainted and prejudiced that it is impossible for the Defendant to receive a fair trial.

That’s because his two colleagues,  Chief Judge Sandra L. Lynch and Jeffrey R. Howard, granted the prosecution’s request to keep its response secret:

The parties are ordered to refrain from disclosing or discussing at the hearing any of the sealed materials in this case. These materials have been sealed in part to protect the integrity of the selection process. Indeed, each side has asked us to seal materials and those materials are before the court.

The two judges also denied Tsarnaev’s request to halt jury selection pending the appeal. On Jan. 3, the appeals court denied his first appeal for a change of venue. Judge George A. O’Toole Jr., who is presiding over the trial in the lower court, has thrice denied the defendant’s motions to move the trial out of the city, where trauma from the bombing still lingers.

Tsarnaev argues that the jury pool in Boston is hopelessly tainted with prejudice. His defense cited an analysis of the prospective jurors showing that a stunning 68 percent already believe he’s guilty.

That’s not really a surprise, given the tremendous campaign of law enforcement leaks that reinforced the perception that the government got its man. Coupled with O’Toole’s insistence on keeping the trial in Boston, many observers have questioned whether Tsarnaev has been given his right to a fair trial.

Although the appeals judges made no mention of their position on moving the trial, it’s noteworthy that Lynch and Howard specified that it was their colleague who wanted the oral arguments. Not them.

Our concurring and dissenting colleague has requested oral argument and argument may be granted at the request of a single judge.

So don’t hold your breath for any revelations or a change of venue to come out of the appellate court’s hearing.

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